# Indiana Regulatory Program > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A94-30506 ## Record - **Collection:** Federal Register - **Document type:** Uncategorized Document - **Published:** December 13, 1994 ## Text DEPARTMENT OF THE INTERIOR Office of Surface Mining Reclamation and Enforcement 30 CFR Part 914 [IN-116-FOR; Amendment 94-3] Indiana Regulatory Program AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), Interior. ACTION: Final rule; approval of amendment. ----------------------------------------------------------------------- SUMMARY: OSM is approving, with an exception, a proposed amendment to the Indiana permanent regulatory program (hereinafter referred to as the Indiana program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). The program amendment consists of revisions to Indiana's Surface Coal Mining and Reclamation Rules concerning performance standards for restoring soil productivity for surface coal mining and reclamation operations under IC 13-4.1. The amendment is intended to revise the Indiana program to be consistent with SMCRA and the corresponding Federal regulations. EFFECTIVE DATE: December 13, 1994. FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director, Indianapolis Field Office, Office of Surface Mining Reclamation and Enforcement, Minton-Capehart Federal Building, 575 North Pennsylvania Street, room 301, Indianapolis, IN 46204, Telephone (317) 226-6166. SUPPLEMENTARY INFORMATION: I. Background on the Indiana Program. II. Submission of the Amendment. III. Director's Findings. IV. Summary and Disposition of Comments. V. Director's Decision. VI. Procedural Determinations. I. Background on the Indiana Program On July 29, 1982, the Indiana program was made effective by the conditional approval of the Secretary of the Interior. Information pertinent to the general background on the Indiana program, including the Secretary's findings, the disposition of comments, and a detailed explanation of the conditions of approval of the Indiana program can be found in the July 26, 1982 Federal Register (47 FR 32107). Subsequent actions concerning the conditions of approval and program amendments are identified at 30 CFR 914.10, 914.15, and 914.16. II. Submission of the Amendment By letter dated January 4, 1993 (Administrative Record Number IND- 1193), Indiana submitted a proposed amendment (#93-1) intended to address the required program amendments concerning revegetation at 30 CFR 914.16 (i), (j), (k), (l), and (m). See 57 FR 41869 (September 14, 1992), and 57 FR 22653 (May 29, 1992) for background on these required amendments. The amendments submitted on January 4, 1993, were reviewed and approved by the Director on August 2, 1993 (58 FR 41039). By letter dated August 11, 1994 (Administrative Record Number IND- 1392), Indiana submitted formal program amendment #94-3. The proposed program amendment concerns the performance standards for restoring soil productivity for surface coal mining and reclamation operations under IC 13-4.1. In its submittal of this amendment, Indiana stated that all of the rules, except 310 IAC 12-4-16, were submitted in a previous package (amendment #93-1) and approved by OSM August 2, 1993. In addition, 310 IAC 12-5-145(c), which was approved as part of amendment #93-1 has been deleted and does not appear in this submittal. Indiana stated that as a result of ongoing Federal litigation over the language of the previously-submitted subsection (c) of 310 IAC 12-5-145, IAC 12- 5-145(c) will not be resubmitted. With amendment #94-3, only those provisions which differ from the amendments approved by OSM in the August 2, 1993, Federal Register notice were considered by OSM to be amendments subject to public review and comment in the current rulemaking process. OSM announced receipt of the proposed amendment in the September 16, 1994, Federal Register (59 FR 47574), and, in the same notice, opened the public comment period and provided opportunity for a public hearing on the adequacy of the proposed amendment. The comment period closed on October 17, 1994. III. Director's Findings Set forth below, pursuant to SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17, are the Director's findings concerning the proposed amendment to the Indiana program. 1. 310 IAC 12-4-16 Performance Bond Release; Requirements Subsection 16(c)(3)(A) is amended by deleting the word ``or'' and replacing that word with ``and.'' As amended, subsection 16(c)(3)(A) provides that Phase III bond may be released only after: (A) the operator has successfully completed all surface coal mining and reclamation activities required in IC 13-4.1, 310 IAC 12, ``and'' the permit. The Director finds this change to be no less stringent than SMCRA at sections 509(a) and 519(c)(3), and no less effective than the Federal regulations at 30 CFR 800.40(c)(3). 2. 310 IAC 12-5-145 Prime Farmland; Special Performance Standards Indiana has deleted subsection 145(c) which was approved by OSM on August 2, 1993 (58 FR 41039). Deleted subsection 145(c) contained the following language: ``Soil reconstruction shall be carried out in accordance with the specifications of the Soil Conservation Service (SCS) of the United States Department of Agriculture establishing prime farmland soil reconstruction specifications for Indiana.'' In its submittal of this amendment Indiana tated that the language quoted above was omitted because of ongoing litigation concerning the language of subsection 145(c). The litigation which Indiana referred to above is Indiana Coal Council, Inc. vs. Babbitt, No. IP93-1328-C (S.D. Ind. filed October 1, 1993). The Federal regulations at 30 CFR 823.4(b) provide that the regulatory authority within each State shall use the soil- reconstruction specifications established by the SCS to carry out the State's responsibilities concerning prime farmland. Prior to the #93-1 program amendment Indiana had no counterpart to the Federal regulations at 30 CFR 823.4(b). Indiana added a counterpart to 30 CFR 823.4(b) at 310 IAC 12-5-145(c) in amendment #93-1, and OSM approved the addition. In the #94-3 amendment, Indiana has removed the counterpart to 30 CFR 823.4(b), due to the lawsuit cited above. The lawsuit cited above involves the following. The U.S. District Court for the District of Columbia has held that the SCS's specifications for prime farmland soil reconstruction must be promulgated as ``rules'' under the Federal Administrative Procedures Act, 5 U.S.C. 551 et seq., and must be subject to public comment prior to becoming effective. In re: Permanent Surface Mining Regulation Litigation II, No. 79-1144 (D.D.C. October 1, 1984), slip. Op. pp. 23- 24. The Indiana Coal Council, Inc. (ICC) contends that an Indiana counterpart to 30 CFR 823.4(b) should not be approved by OSM until after the SCS has complied with the requirement to subject its ``specifications'' to public comment. OSM had required that Indiana promulgate a regulation addressing the requirements of 30 CFR 823.4(b). (57 FR 41873, September 14, 1992). When Indiana proposed 310 IAC 12-5-145(c) as the counterpart to 30 CFR 823.4(b), OSM removed the required amendment at 30 CFR 914.16(l). (58 FR 41042, August 2, 1993.) Since Indiana has now deleted 310 IAC 12-5- 145(c), the State's program again lacks a counterpart to 30 CFR 823.4(b). Therefore, the Director finds that the deletion of 310 IAC 12-5-145(c) renders the Indiana program less effective than the Federal regulations. Consequently, the Director is requiring that Indiana amend its program to include a counterpart to 30 CFR 823.4(b) or to otherwise require that any prime farmland soil reconstruction specifications promulgated as rules for the State of Indiana by the SCS be incorporated by reference into the Indiana program. IV. Summary and Disposition of Comments Federal Agency Comments Pursuant to section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i), comments were solicited from various interested Federal agencies. No comments were received. Public Comments The public comment period and opportunity to request a public hearing was announced in the September 16, 1994, Federal Register (59 FR 47574). The comment period closed on October 17, 1994. No one commented and no one requested an opportunity to testify at the scheduled public hearing so no hearing was held. Environmental Protection Agency (EPA) Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain the written concurrence of the Administrator of the EPA with respect to any provisions of a State program amendment that relate to air or water quality standards promulgated under the authority of the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.). The Director has determined that this amendment contains no provisions in these categories and that EPA's concurrence is not required. Pursuant to 732.17(h)(11)(i), OSM solicited comments on the proposed amendment from EPA. EPA responded by letter dated September 27, 1994 (Administrative Record Number IND-1402). In that letter, the EPA stated that it had no comments on the proposed amendment. V. Director's Decision Based on the findings above, the Director is approving, except as noted herein, Indiana's program amendment concerning performance standards for restoring soil productivity submitted by Indiana on August 11, 1994. As discussed in Finding 2, the Director has determined that the deletion of 310 IAC 12-5-145(c) renders the Indiana program less effective than the Federal regulations. The Director is requiring that Indiana amend its program to include a counterpart to 30 CFR 823.4(b) or to otherwise require that any prime farmland soil reconstruction specifications promulgated as rules for the State of Indiana by the SCS be incorporated by reference into the Indiana program. The Federal regulations at 30 CFR Part 914 codifying decisions concerning the Indiana program are being amended to implement this decision. This final rule is being made effective immediately to expedite the State program amendment process and to encourage States to bring their programs into conformity with the Federal standards without undue delay. Consistency of State and Federal standards is required by SMCRA. Effect of Director's Decision Section 503 of SMCRA provides that a State may not exercise jurisdiction under SMCRA unless the State program is approved by the Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of an approved State program be submitted to OSM for review as a program amendment. Thus, any changes to the State program are not enforceable until approved by OSM. The Federal regulations at 30 CFR 732.17(g) prohibit any unilateral changes to approved State programs. In his oversight of the Indiana program, the Director will recognize only the statutes, regulations and other materials approved by him, together with any consistent implementing policies, directives and other materials, and will require the enforcement by Indiana of only such provisions. VI. Procedural Determinations Executive Order 12866 This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866 (Regulatory Planning and Review). Executive Order 12778 The Department of the Interior has conducted the reviews required by section 2 of Executive Order 12778 (Civil Justice Reform) and has determined that, to the extent allowed by law, this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments since each such program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30 CFR 730.11, 732.15 and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met. National Environmental Policy Act No environmental impact statement is required for this rule since section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)). Paperwork Reduction Act This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq.). Regulatory Flexibility Act The Department of the Interior has determined that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The State submittal which is the subject of this rule is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. Accordingly, this rule will ensure that existing requirements previously promulgated by OSM will be implemented by the State. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations. List of Subjects in 30 CFR Part 914 Intergovernmental relations, Surface mining, Underground mining. Dated: December 6, 1994. Tim L. Dieringer, Acting Assistant Director, Eastern Support Center. For the reasons set out in the preamble, Title 30, Chapter VII, Subchapter T of the Code of Federal Regulations is amended as set forth below: PART 914--INDIANA 1. The authority citation for Part 914 continues to read as follows: Authority: 30 U.S.C. 1201 et seq. 2. In Sec. 914.15, paragraph (ddd) is added to read as follows: Sec. 914.15 Approval of regulatory program amendments. * * * * * (ddd) The following amendment to the Indiana program as submitted to OSM on August 11, 1994, under program amendment #94-3, is approved effective December 13, 1994: 310 IAC 12-4-16(c)(3) concerning performance bond release. 3. In Sec. 914.16, paragraph (gg) is added to read as follows: Sec. 914.16 Required program amendments. * * * * * (gg) By May 31, 1995, Indiana shall amend the Indiana program by adding a counterpart to 30 CFR 823.4(b), or by otherwise requiring that any prime farmland soil reconstruction specifications promulgated as rules by the United States Soil Conservation Service for the State of Indiana be incorporated by reference into the Indiana program. [FR Doc. 94-30506 Filed 12-12-94; 8:45 am] BILLING CODE 4310-05-M --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-30506. Public record. Not legal advice.